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The “Blurred Lines” of copyright law: is Robin Thicke’s song a homage or a copy?

On 10 March 2015, singer Robin Thicke’s questionable 2013 hit “Blurred Lines” was found by a federal jury in the US to be a plagiarism of Marvin Gaye’s 1977 song “Got to Give It Up”. While some may be glad to see a polarising and often controversial figure like Thicke be financially penalised, others are worried about the legal implications that the decision may have on the music industry.

Robin Thicke and co-writer of “Blurred Lines”, Pharrell Williams, were found to have copied the musical content of Marvin Gaye’s “Got to Give It Up”.

The jury was asked to consider only the sheet music of both songs and not the additional sound layers added to each song.

The verdict further highlights the blurred lines in the subtle legal differences between homage and plagiarism.

The Court Case

On Tuesday, a US Federal jury ruled that Marvin Gaye’s 1977 song “Got to Give It Up” had been unintentionally plagiarised in Robin Thicke’s song “Blurred Lines”, released in 2013.

Both Robin Thicke and Pharrell Williams were found to have infringed Marvin Gaye’s copyright as both parties were credited as the songwriters (although Mr Thicke acknowledged that he had little to do with the writing process, and only took songwriting credit out of pride). Singer Clifford Harris Jr., known by stage name T.I., was not found liable given his short contribution to the song, which consisted of a rap break.

Mr Thicke and Mr William’s lawyers argued that the similarities between the songs only existed due to the writers’ attempt to emulate an era of music and a generally jovial, upbeat atmosphere. This argument is a common defence used by musicians or artists; that a song is a “homage” to an era or another artist’s sound, rather than outright plagiarism. In this case, this defence was refused by the jury.

In coming to the decision against Mr Thicke and his co-writer Mr Williams, the jury were instructed to look at the sheet music alone, when comparing both songs. Thus, the decision was based on the core of the song, the musical notes and the lyrics of each song, rather than any additional sounds worked into the song by producers to create a certain feeling. Some may argue that this direction was favourable to the accused songwriters, as it eliminated additional “whoops” and clanging cow bells which are also heard in both songs.

Marvin Gaye’s family was awarded US$7.3 million, consisting of US$4 million in damages and around US$3.3 million from the profits of the plagiarised song.

Legal Implications for the Music Industry

Although not a new concept to the music industry, the phenomenon of borrowing tunes from previous eras and turning bygone styles into pop hits is on the rise.

This case is a timely reminder that when the copyright infringement of a song is in question, the law concerning plagiarism is not black or white, but can be blurred by many different factors and elements. The similarity of notes, choruses, phrases and lyrics are all key considerations and may be given different weight when determining whether copyright infringement has occurred, leaving factors such as the general “feel” of a song, being less important.

The similarities of the two songs were disputed by both parties on many different issues, which resulted in the parties being unable to reach an out of court settlement; leaving the decision to a jury. This is rare, but it highlights the difficulties both in applying the law to a creative process and separating any emotional attachment from the end product. Given the likely implications of this case for the creative industry, the individuals involved in the music industry need to be ever vigilant in the way they use inspiration in their songs, especially given the possible damage to an individual’s reputation once an accusation of plagiarism surfaces.

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